Choice of Evils in Colorado

• Jurisdiction: Colorado,United States
• Citation: Vol. 06 No. 1989 Pg. 1117
• Pages: 1117
• Publication year: 1989

18 Colo.Law. 1117 Colorado Lawyer 1989.

1989, June, Pg. 1117. Choice of Evils in Colorado

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Choice of Evils in Colorado

by Jeff Pagliuca

The doctrine of necessity, or "choice of evils," justifies breaking the law to prevent an injury greater than the injury prohibited by the violated statute. Simply stated, the doctrine recognizes that, in some situations, the end justifies the means. Although the defense is seldom used, it is viable in many cases.(fn1)

Courts have and likely will continue to construe strictly the choice of evils defense, using any flaw in the presented justification evidence to deny a necessity jury instruction. Thus, it is important to understand the history of the necessity doctrine and to look beyond the strict language of the statute when arguing applicability of the defense.

Successful use of the choice of evils defense requires that the attorney educate the trial court about the history of the statute. The court should be apprised of the fact that many of the cases which precede codification of the defense allow a more expansive application of the doctrine and temper the terms used in the Colorado statute with a reasonableness requirement. Further, the lawyer arguing for the defense carefully must present facts which will mandate a favorable pre-trial ruling. Considerable thought must be given to the type of injury alleged, the immediacy of the injury and the lack of "legal" alternatives in eliminating the injury.

This article provides an overview of the statute and an outline of the requirements of the choice of evils defense.

Scope of the Statute

CRS § 18-1-702 was enacted in 1971. This statutory exemption from criminal

responsibility provides that, unless inconsistent with some other provision of law, conduct which would otherwise be criminal is justified if

1) it is necessary as an emergency measure to avoid imminent public or private injury;

2) the injury is about to occur because of a situation which the defendant did not create; and

3) according to ordinary standards of intelligence and morality, it was better for the defendant to have avoided the injury than to have complied with the statute under which he or she is charged.

In addition, the statute notes that the necessity for the conduct in question may not rest on the perceived morality of the statute which the accused has allegedly violated.

Finally, the legislature has mandated that, before evidence relating to the choice of evils defense can be presented to a jury, it must be submitted to the trial court. The court must then determine whether there is sufficient evidence to permit the choice of evils defense to be considered by the jury. All of the above elements are discussed below.

Emergency Measure

Before the choice of the evils defense may be used, counsel must show that the defendant's conduct was necessitated by a specific and imminent threat of injury which left the client no reasonable alternative other than violation of the law for which he or she is charged.(fn2) An allegation of generalized fear will not support the defense, and the "threat must be so definite, specific, and imminent as to rise beyond mere speculation."(fn3) Thus, specific facts must be presented which clearly articulate the impending harm in order to raise the defense.

Although it may seem that this imposes an extremely strict requirement of imminence, it should be noted that an early decision construing the necessity defense in another jurisdiction held that:

The term "imminent" does not describe the proximity of the danger by any mechanical measurement. . . . The law does not fix the distance of time between the justifiable defense and the mischief, or all cases by the clock or the calendar. The chronological part of the doctrine of defense, like the rest of it, is a matter of reasonableness; and reasonableness depends upon circumstances.(fn4)

In addition, when proposing a statute similar to the Colorado choice of evils defense, the drafters of the Missouri Criminal Code stated that:

What constitutes "emergency measure" and "imminent" does not depend solely on the interval of time before the injury sought to be prevented will occur. Additional circumstances of the particular fact situation must also be evaluated. Thus, if under the circumstances, the mere passage of time is such that a reasonable man would perceive no viable alternatives to his present course of conduct, the fact that the injury sought to be prevented will not take place for some time hence, e.g., six hours, will not prevent

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